On April 21, 2020 the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) (collectively, the “Agencies”) published the final rule narrowing the meaning of the Clean Water Act (“CWA”) term “waters of the United States,” which represents the culmination of one of President Trump’s key environmental agenda items. The Trump Administration’s repeal and replace approach clears up years of uncertainty in the wake of the Obama Administration’s 2015 rule. The final rule, called the “Navigable Waters Protection Rule,” will become effective on June 22, 2020.
The final rule repeals the Obama Administration’s hotly contested 2015 rule, which broadly defined the term “waters of the United States” and was interpreted to include waters with a “significant nexus” to jurisdictional waters. Determining if waters had a “significant nexus” to jurisdictional waters under the 2015 rule often required case-specific analysis or the hiring of a consultant to assist with a jurisdictional determination and sometimes led to inconsistent application of the rule in different regions. In an effort to eliminate the subjectivity associated with determining whether waters have a “significant nexus” with jurisdictional waters, the Trump Administration’s final rule narrows the definition of “jurisdictional waters” by creating four discrete categories of jurisdictional waters, while identifying eleven categories of non-jurisdictional waters. These changes, which we summarized in a previous blog post, were made to provide clarity in response to a litany of challenges to the geographical scope of the 2015 rule.
As with the 2015 rule, challenges to the final rule are inevitable. On January 22, 2018, the United States Supreme Court held that challenges to the definitional rule must be brought in the United States District Courts, as opposed to circuit courts. As a result, environmental groups, as well as many Democratic-led states, are likely to flood the District Courts with challenges, creating the potential for a patchwork of outcomes similar to the challenges of the 2015 rule which resulted in some states being subject to the 2015 rule while others were subject to the regulatory interpretation of Waters of the U.S. in place prior to the 2015 rule after the Trump Administration’s repeal rule went into effect. A critical component of the challenges to the final rule will be whether any District Court grants a nationwide injunction of the final rule. The Supreme Court has recently criticized nationwide injunctions and the U.S. Department of Justice (“DOJ”) has issued guidance opposing such sweeping relief, but courts continue to issue such injunctions. The Trump Administration’s repeal rule, which is also currently being challenged, sought to ensure that in the instance the final rule is broadly enjoined, CWA jurisdiction will revert to the regulatory interpretations in place prior to the 2015 rule.
One other critical component will be whether states take steps to fill in any perceived gaps between the final rule’s jurisdiction and their own, often broader definitions of state waters. The final rule emphasizes the CWA’s cooperative federalism and seeks to appropriately limit federal jurisdiction while allowing states to assert their own jurisdiction to regulate land and water resources within their borders.
For more information on the implications of the publication of the Navigable Waters Protection Rule and its implementation, please contact Brooks M. Smith, Andrea W. Wortzel, E. Fitzgerald Veira, Byron W. Kirkpatrick, Patrick J. Fanning, or Ashley Cameron.